Citation Nr: 1037293
Decision Date: 09/30/10 Archive Date: 10/05/10
DOCKET NO. 10-01 032 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in New Orleans,
Louisiana
THE ISSUE
Entitlement to a total disability rating based on individual
unemployability (TDIU) on an extraschedular basis.
REPRESENTATION
Veteran represented by: Veterans of Foreign Wars of the
United States
ATTORNEY FOR THE BOARD
Shauna M. Watkins, Associate Counsel
INTRODUCTION
The Veteran had active service from August 1948 to May 1952.
This appeal to the Board of Veterans' Appeals (Board) is from a
December 2008 rating decision of the Department of Veterans
Affairs (VA) Regional Office (RO) in Cleveland, Ohio (Tiger
Team), which denied entitlement to a TDIU. The RO in New
Orleans, Louisiana, has since assumed jurisdiction, and that
office forwarded the appeal to the Board.
In April 2010 the Board remanded the matter for additional
development. That development having been completed, the claim
has been returned to the Board.
Please note this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2009).
38 U.S.C.A. § 7107(a)(2) (West 2002).
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the Veteran if
further action is required.
REMAND
Inasmuch as the Board regrets the additional delay of this
matter, a remand is required before the claim can be properly
adjudicated.
Total disability is considered to exist when there is any
impairment in mind or body that is sufficient to render it
impossible for the average person to follow a substantially
gainful occupation. 38 C.F.R. § 3.340(a)(1) (2009). A total
disability rating for compensation purposes may be assigned on
the basis of individual unemployability, that is, when the
disabled person is, in the judgment of the rating agency, unable
to secure or follow a substantially gainful occupation as a
result of service-connected disabilities. 38 C.F.R. § 4.16(a)
(2009). If there is only one service-connected disability, it
must be rated at 60 percent or more; if there are two or more
service-connected disabilities, at least one disability must be
rated at 40 percent or more, and sufficient additional disability
must bring the combined rating to 70 percent or more. Id.
Individual unemployability must be determined without regard to
any non-service connected disabilities or the Veteran's advancing
age. 38 C.F.R. §§ 3.341(a), 4.19 (2009); Van Hoose v. Brown, 4
Vet. App. 361 (1993).
If a Veteran does not meet these threshold minimum percentage
standards set forth in 38 C.F.R. § 4.16(a), he still may be
entitled to a TDIU on an extra-schedular basis, provided he is
unable to secure or follow a substantially gainful occupation by
reason of her service-connected disabilities. 38 C.F.R. §
4.16(b) (2009). See also 38 C.F.R. § 3.321(b)(1); Fanning v.
Brown, 4 Vet. App. 225 (1993). Thus, the Board must assess
whether there are circumstances in the Veteran's case, apart from
any non-service connected conditions and advancing age, which
would justify a total rating based on unemployability. See Van
Hoose, 4 Vet. App. at 361; see also Hodges v. Brown, 5 Vet. App.
375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993).
In this case, the Veteran is service-connected for posttraumatic
stress disorder (PTSD) (rated as 30 percent disabling); residuals
of a cold injury to the right foot (30 percent); residuals of a
cold injury to the left foot (30 percent); a shell fragment wound
scar to the upper right arm, healed, moderate muscle injury Group
V (10 percent); tinnitus (10 percent); healed gunshot would scar
on the 2nd toe of the left foot (0 percent); shell fragment wound
to the left knee and leg with no residuals (0 percent); post
operative hernioplasty scar on the right (0 percent); shell
fragment wound scar on the dorsal surface of the left hand (0
percent); and, bilateral hearing loss (0 percent). His total
combined disability rating is 80 percent.
He does not have at least one disability must be rated at
40 percent or more. As such, he does not have a sufficient
rating to satisfy the threshold minimum requirements of 38 C.F.R.
§ 4.16(a) for consideration of a TDIU. But, as mentioned, he can
still show his entitlement to this benefit by establishing his
unemployability under the special provisions of § 4.16(b).
See also 38 C.F.R. § 3.321(b)(1) (2009); Floyd v. Brown, 9 Vet.
App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227
(1995).
In this regard, the Board is precluded from assigning an extra-
schedular rating in the first instance. See Bagwell v. Brown, 9
Vet. App. 237, 238-9 (1996); Floyd, 9 Vet. App. at 96. Although
the Board may not assign an extra-schedular rating in the first
instance, it must specifically adjudicate whether to refer a case
for extra-schedular evaluation when the issue either is raised by
the claimant or is reasonably raised by the evidence of record.
Barringer v. Peake, 22 Vet. App. 242 (2008). See also Shipwash,
8 Vet. App. at 227.
The RO, in its December 2008 rating decision, declined to refer
this case to the Under Secretary for Benefits or to the Director
of Compensation and Pension Service for consideration of a TDIU
on an extra-schedular basis under the provisions of 38 C.F.R.
§ 4.16(b), keeping in mind the Veteran does not satisfy the
threshold minimum rating requirements of § 4.16(a) for this
benefit without resorting to this special extra-schedular
consideration.
Because, however, there is medical and lay evidence of record at
least suggesting the Veteran's service-connected disabilities
preclude him from working in all forms of substantially gainful
employment, the Board fidns that his case must be referred to
this authority for this special consideration under § 4.16(b).
Specifically, the November 2008 VA examiner, following a physical
examination of the Veteran and a review of the Veteran's medical
records, determined that the Veteran "is limited from employment
that requires long periods of standing, extensive walking, and
exposure to cold temperatures secondary to his service-connected
cold injury of the feet. He is also limited by his service-
connected hearing problem from employment in which he would be in
an environment that had extensive background noise as he is
unable to hear directions/have conversations in such condition."
Further, the June 2010 VA examining podiatrist, following a
physical examination of the Veteran and a review of the Veteran's
claims file, determined that the Veteran cannot stand for
prolonged periods of time due to his service-connected cold
injury of the feet and therefore he would not be able to work as
draftsman, which was his occupation.
Therefore, these records suggest that various symptoms associated
with his service-connected disabilities cause significant, if not
total, impairment in his occupational functioning.
The Board, therefore, is compelled to remand this TDIU claim
for immediate referral to the Director of the Compensation and
Pension Service or other designate in accordance with 38 C.F.R. §
4.16(b) for consideration of whether this benefit is warranted on
an extra-schedular basis.
Accordingly, the case is REMANDED for the following actions:
(Please note, this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2009).
Expedited handling is requested.)
1. Refer this TDIU claim to the Director of
Compensation and Pension Service, pursuant to
the provisions of 38 C.F.R. § 4.16(b), for
consideration of whether this benefit is
warranted on an extra-schedular basis. This
referral is mandatory, although the decision
of whether to actually award an extra-
schedular rating remains to be decided by the
Director of C&P Service or designate.
2. After the above actions have been
completed, readjudicate the Veteran's claim.
If the claim remains denied, issue to the
Veteran a supplemental statement of the case,
and afford the appropriate period of time
within which to respond thereto.
The Veteran has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky v.
West, 12 Vet. App. 369 (1999). This claim must be afforded
expeditious treatment. The law requires that all claims that are
remanded by the Board of Veterans' Appeals or by the United
States Court of Appeals for Veterans Claims for additional
development or other appropriate action must be handled in an
expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp.
2009).
_________________________________________________
MICHAEL MARTIN
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a decision
of the Board on the merits of your appeal. 38 C.F.R.
§ 20.1100(b) (2009).